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“Deem and Pass” Deemed “Bad Procedure”

For as long as I can remember, I’ve tried to pay attention to the goings on in Washington, D.C. and was surprised when I heard about a “deem and pass” rule. I began to think, “how can Congress deem a bill passed without a vote? If Congress can deem something, can I do the same?”So, I did some research. I was even more surprised to learn that “deem and pass” was not a new rule. the rule has been around since the 1933.Ryan Grim of Huffington Post reports, “Less than two weeks into FDR’s first 100 days, Congress needed to raise its debt ceiling, a ritual vote that hasn’t gotten any easier for the majority party in the intervening 77 years — and is still political fodder for partisan opponents.Instead of voting on the underlying Senate bill to raise the debt ceiling in 1933, the House voted on Resolution 63, which stated that “immediately upon the adoption of this resolution the bill H.R. 2820, with Senate amendments thereto, be, and the same hereby is, taken from the Speaker’s table to the end that all Senate amendments be, and the same are hereby, agreed to.”

According to the Congressional Research Service, “Definition of “Self-Executing” Rule. One of the newer types is called a “self-executing” rule; it embodies a “two-for-one” procedure. This means that when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House and been incorporated in the bill to be taken up. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the “self-executed” provision. It was automatically agreed to when the House passed the rule. Rules of this sort contain customary, or “boilerplate,” language, such as: “The amendment printed in [section 2 of this resolution or in part 1 of the report of the Committee on Rules accompanying this resolution] shall be considered as adopted in the House and in the Committee of the Whole.

Traditional Use. Originally, this type of rule was used to expedite House action in disposing of Senate amendments to House-passed bills. As mentioned in the precedents (House Practice by Wm. Holmes Brown and Charles W. Johnson), self-executing rules for these purposes eliminate “the need for a motion to dispose of the [Senate] amendment.” Brown and Johnson further state that such resolutions are sometimes called “hereby” special orders “because the House, in adopting the resolution as drafted, ‘hereby’ agrees to the disposition of the [Senate] amendment as proposed by that resolution. If the House adopts a resolution, no further action by the House is required. The [Senate] amendment is never before the House for separate consideration.” “Hereby” or self-executing rules have also been used to adopt concurrent resolutions correcting the enrollment of measures or to make other technical changes to legislation.”

In June, 2006 Don Wolfensberger reported, “as the House became more partisan in the 1980s, the majority leadership was empowered by its caucus to take all necessary steps to pass the party’s bills. This included a Rules Committee that was used more creatively to devise procedures to all but guarantee policy success. The self-executing rule was one such device to make substantive changes in legislation while ensuring majority passage.

When Republicans were in the minority, they railed against self-executing rules as being anti-deliberative because they undermined and perverted the work of committees and also prevented the House from having a separate debate and vote on the majority’s preferred changes. From the 95th to 98th Congresses (1977-84), there were only eight self-executing rules making up just 1 percent of the 857 total rules granted. However, in Speaker Tip O’Neill’s (D-Mass.) final term in the 99th Congress, there were 20 self-executing rules (12 percent). In Rep. Jim Wright’s (D-Texas) only full term as Speaker, in the 100th Congress, there were 18 self-executing rules (17 percent). They reached a high point of 30 under Speaker Tom Foley (D-Wash.) during the final Democratic Congress, the 103rd, for 22 percent of all rules.

When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively).”This procedure was also used 36 times in 2005 and 2006 and 49 times in 2007 and 2008.

MotherJones puts it this way, “Republicans have used this procedural tactic before too, Democrats have challenged it, and the Supreme Court ruled that it was fine. So they’re on thin ice both on grounds of partisan hypocrisy and legal fundamentals….deem-and-pass won’t help anyone, puts process back in the news, will give Republicans another free shot at Democrats, and makes individual House members look like cowards. But other than that it’s a great idea.”

To answer my original questions:1) “How can Congress deem a bill passed without a vote?” It’s more complex than that, the House of Representatives does vote for a package of fixes and a rule deeming the bill passed.2) “If Congress can deem something, can I do the same?” Yes, and I deem this “Bad Procedure!”

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